1969 PLP 529 (SCMR)

MUHAMMAD MUNIR, C. J.‑This is an appeal by special leave from a life sentence for murder. Muhammad Sarwer, a P. E. M. E. sepoy in the Regimental Centre at Quetta, went out of his barrack on the evening of 12th March 1949. On the following day at 8‑30 o'clock in the evening he was found lying dead in the parade ground, and the doctor who performed the post‑mortem examination discovered on his body wounds which could only have been inflicted with a homicidal intent. Muhammad Hanif and Muhammad Ayyub, who were also employed in the Centre, were suspected of being the authors of this crime. On 21st March, Muhammad Hanif was produced before Syed Muhammad Ali Shah, a First Class Magistrate, before whom he made a confession which was duly recorded under sec tion 164 of the Code of Criminal Procedure. He also pointed to an incinerator outside the barracks from where a pair of trousers and a shirt were recovered which had human blood on them. After the investigation, Muhammad Hanif and Muhammad Ayyub were produced before the Magistrate, who after holding the necessary enquiry, committed them to the Court of Session on the charge of murder. The trial was held before the Sessions Judge, Mr. Miall, who by his order dated the 22nd December 1949, acquitted them. The Provincial Administration, however, appealed to the Judicial Commissioner who on 26th August 1950 accepted the appeal against Muhammad Hanif and ordered him to be retried. The retrial was held before another Sessions Judge, Mr. Ghazanfar Hussain, who on 6th March 1951 convicted Muhammad Hanif of murder And sentenced him to transportation for life. Muhammad Hanif appealed to the Court of the Judicial Commissioner, but his conviction and sentence were upheld on 11th July 1951. More than one and a quarter year after the expiry of the Limitation a petition by Muhammad Hanif for special leave to appeal was received by this Court from prison and leave was granted to him with a view to considering the following questions which seemed to arise from the order of the Judicial Commissioner and the petition :‑ (1) whether the order of retrial was correct? (2) whether the record of the confession was admissible? (3) whether the evidence relied on could be considered to be sufficient corroboration of the retracted confession? (4) whether the depositions of certain witnesses were rightly transferred under section 33 of the Evidence Act? We have now heard Mr. Dost Muhammad Khan on behalf of the appellant, and after perusing the record and hearing the arguments, we see no sufficient reason to interfere. The learned Judicial Commissioner has given reasons for holding that the confession made by the appellant was voluntary, and on examining the original record of the confession no apparent defect therein has been discovered. The recording Magistrate put some preliminary questions to the appellant in order to ascertain whether he wished to confess voluntarily, and on being satisfied that no improper influence or inducement was operating on the appellant's mind he proceeded to record the confession and appended the statutory certificate to it. Thus the record as made being admissible and the confession having been held to be voluntary, the only question that needs consideration is whether the evidence in corroboration of the confession tended to connect the appellant with the crime. There is intrinsic evidence in the confession to show that it could only have been made by a person who was concerned in the crime, because the details of what led the appellant to commit the murder and how the murder was brought about are so full and natural that they could not have been invented by a person who knew nothing of the crime. The evidence which has been accepted in corroboration of the confession is that on the evening of 12th March 1949 the appellant and Muhammad Sarwar deceased left the barrack together, that after sometime the appellant returned alone arid without trousers and shirt which he had on his person when he left, and that the injuries to the deceased were caused by two different weapons like a chopper and a razor, the two instruments of crime mentioned by the appellant in his confession. The pair of trousers and shirt was recovered from an incinerator at the instance of the appellant himself, and both these articles were found stained with human blood. There was, therefore, abundant evidence in corroboration of the confession which could have been acted upon by the learned Judicial Commissioner in upholding the conviction. The record discloses that the previous depositions of three persons, namely, Muhammad Sadiq, Khadim Hussain and Muhammad Shafi, were transferred under section 33 of the Indian Evidence Act because they were not available at the subsequent trial. It is unnecessary to examine the question whether these depositions were rightly transferred or not, because none of the findings which have been held to be corroborative of the confession is based on any one of these depositions. Whatever our view about the order of retrial may be, it is conceded, and rightly, by the learned counsel for the appellant, that that order was not void or without jurisdiction. Even if it be assumed that the order was irregular, we would not be justified now to declare it to be wrong and to vacate all the subsequent proceedings founded on it. We do not, therefore, see any substance in this appeal and dismiss it. Appeal dismissed.